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TMI Blog2018 (10) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... 8% per annum, though 24% per annum has been prayed for in the prayer paragraph. Considering the trajectory of the suit and considering the fact that the sole defendant has not chosen to enter appearance and has compelled the plaintiff to carry the matter to its logical end by pursuing this suit for over 1½ years (to be noted plaint was presented on 25.01.2017), I am of the view that the plaintiff is entitled to costs - Suit is decreed with costs as prayed for. - C.S.No.66 of 2017 And A.No.7229 of 2018 - - - Dated:- 24-9-2018 - Mr. Justice M. Sundar For the Plaintiff : Mr.K.Mahalingam For the Defendant : Set exparte JUDGMENT The aforesaid application i.e., A.No.7229 of 2018 has been taken out under order XIII-A of 'The Code of Civil Procedure, 1908' ('C.P.C.' for brevity) as amended by 'The Commercial Courts Act, 2015' ('said Act' for brevity) with a prayer for summary judgment. 2. Mr.K.Mahalingam, learned counsel on record for the sole plaintiff is before this Commercial Division and learned counsel requested that a summary judgment in the main suit itself may please be passed, as the defendant has no real prospects of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the wrong provision will not take away the powers of the Court and therefore, there is no difficulty in acceding to the request of the learned counsel for plaintiff to treat this as a prayer under Clause (a) of Sub-Rule (6) of Rule 3 of Order XXXVII of C.P.C. 9. The trajectory of the suit above will reveal that the sole defendant though duly served with suit summons on 01.03.2017, has not, within 10 days from the date of such service, entered appearance either in person or by a pleader. Likewise, the defendant within those 10 days has not chosen to file any affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle the defendant to defend, apply on such summons for leave to defend such suit, as provided for under sub-Rule (5) of Rule 3 of Order XXXVII of C.P.C. 10. In the above backdrop, I now turn to the suit itself. 11. Short facts, as they unfurl from the plaint averments, reveal that the plaintiff is a company, which is engaged in the business of generating and selling electricity/power/energy. It is the case of the plaintiff that the defendant approached the plaintiff for purchase of power. To be precise, 4000 K WHR power and for this purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant, defendant has received the notice, admitted their liability and sent a reply requesting the plaintiff to postpone the legal action. Legal notice issued by the plaintiff is dated 21.05.2016. To be noted, it has been sent to the sole defendant, which is a private limited company as well as two other natural persons, who have been described as Directors in the sole defendant company. Apparently such a course had been adopted for the purpose of initiating action under Section 138 of the Negotiable Instruments Act against persons in charge of and responsible to the affairs of the sole defendant company. This document, together with postal receipt have been filed as document No.16 along with the plaint. What is of importance is, a reply to this notice dated 28.05.2016 sent by the sole defendant has been placed before me as plaint document No.17 and the same reads as follows: 'Date : 28.05.2016 To Mr.K.MAHALINGAM., M.Com., B.Ed., LL.B., ADVOCATE, FLAT NO.2, No.22, VAIDYANATHAN STREET, NUNGAMBAKKAM, CHENNAI 600 034. MOBILE : 98411 24370. Dear Sir, Sub :- Settlement of dues-M/s Kamachi Sponge Power Corporation Limited., Chennai 600 002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntil then please, as we were confident on settling their dues as stated above. Kindly do co-operate with us in this regard. Thanks and regards, For GEETHA SAI ENERGY SOLUTIONS PVT LTD., (s/d) DIRECTOR. Copy to : M/s KAMACHI SPONGE POWER CORPORATION LIMITED ABC Trade Centre, Anna Salai, Chennai 600 002.' 18. More importantly, prior to the exchange of the aforesaid notice, learned counsel for plaintiff points out that the sole defendant had sent a ehttp:// mail dated 03.05.2016 (plaint Document No.13) and a letter dated 12.05.2016 (plaint Document No.15), which read as follows: (i) Plaint Document No.13: 'Subject : Re : Geetha Sai Energy Solution Pvt. Ltd., - Outstanding dues/Cheque presenting reg. From :Somasundaram Subramanian [email protected] on Tue,03 May 2016 14:41:31 To : KSPCL Power [email protected] Cc : samburam [email protected] , glkothari [email protected] Dear Sir, We we're extremely sorry on delay in replying your mail due to hectic financial crisis and pressure as inadequate delay on getting sanctions from financial institution's on loans/ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of your Dues Request for defer on proceedings regarding Ref :- Our email dated 3rd May 2016. We hereby like to inform you that, as stated in our email referred above, we were now came a bit out of our financial crisis as a forward move, we performed Bhoomi Pooja and about to start the construction activities on obtaining DTCP plan approval shortly. We also like to inform you that, as informed on our further activity on Online marketing/trading of Groceries, were under progress and hope that very shortly it shall be launched and take off as our bankers have endorsed our request and principle loan sanction is expected by next week. We shall like to state that, the 3 cheques bearing No's 003575 dated 16.03.2016, 003576 dated 23.03.2016 and 3577 dated 31.03.2016 (each ₹ 50,000.00) issued to you as security have been presented for clearing and returned by our bankers (ICICI Bank Ltd., Kolathur Branch, Chennai) on 5th, 6th and 7th May 2016 respectively as 'In-sufficient of funds'. On this circumstances, we hereby request you to consider our request as informed wide our mail as referred above, as we were confident on settlin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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